This is a bad ruling. Really terrible. It's the kind of results-oriented judicial activism that undermines the public's trust in the judiciary. The judge made it clear he was going to rule for the plaintiff, no matter what. But in doing so, he has potentially ripped open a huge hole in Internet law. Hey jobless recent law school grads—if this ruling sticks, there may be buckets of money to be made in ADA litigation against Internet companies.

The case involves a Cyberlaw perennial: are websites obligated to comply with the Americans with Disabilities Act (the ADA)? In this case, the desired accommodation is close-captioning for Netflix-streamed video. If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I'm not creative enough to think of all the implications, but I can assure you that ADA plaintiffs' lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels.

And then there's linkages with other civil rights statutes, such as Title II of the Civil Rights Act of 1964 (an anti-discrimination law) and state laws, that use similar language as the language interpreted in this ruling. If all of those statutes are back in play too, the range of obligations imposed on websites—and the opportunities for aggressive plaintiffs' lawyers—expand exponentially. Expect lots of consumer claims that a website discriminated against them based on an impermissible criterion. It's safe to say that the legal rules at issue in this case could have billions of dollars of impact between the web coding obligations and the potential litigation frenzies.

The most crucial ruling is where the court says that a website qualifies as a "place of public accommodation." The court deviated from—and, incredibly, didn't cite—a nearly unbroken line of precedent rejecting that conclusion. I don't have a complete roster of cases in this area, but cases that came to mind include Noah v. AOL (a Title II case), Access Now v. Southwest Airlines (an 11th Circuit case), Stern v. Sony, Young v. Facebook, and Ouellette v. Viacom. The only plaintiff win in this area is the offbeat National Federation of the Blind v. Target case (which this court did cite), where the court held that Target's obligations to comply with the ADA in its offline retail stores extended to its website. Because of its fact-specific nature, the Target ruling really hasn't had much of an impact on Internet litigation over the past 6 years.

Bypassing all of this precedent, the judge instead relies almost exclusively on the heavily criticized First Circuit Carparts decision from 1994. The NAD made a crafty venue move suing in a court bound by Carparts. Even so, I wonder how this ruling would fare on appeal to the First Circuit (if Netflix goes that route), and I wonder if judges in other circuits will be persuaded by this judge's ruling.

Netflix also argued that it lacked the copyright permissions to close-caption the copyrighted works of others. This is no joke; recall, for example, the howls over Amazon's text-to-speech feature in the Kindle. The court says it wants discovery on that issue.

Finally, Netflix argued that the Twenty-First Century Communications and Video Accessibility Act of 2010 ("CVAA") and associated FCC regulations preempted the ADA's application to Netflix's service. I don't know anything about the CVAA, but it's clearly topical to the issue of close-captioning online video. The court says that Netflix (and presumably other sites covered by the CVAA) gets the pleasure of complying with both the ADA and the CVAA. Yay for duplicative and overlapping regulations!

It's possible that Netflix will win this case in the end (probably not in front of this judge). Until it does, however, we have a clean (if erroneous) ruling that websites are places of public accommodation that are subject to the ADA. I have to imagine plaintiffs will find that pretty exciting.

Update: Although I believe the statute and case law make it clear that ADA does not apply to websites, I also believe that responsible websites should voluntarily undertake extra efforts to accommodate users with disabilities. In many cases, doing so will actually increase profits by expanding the userbase; and even where it isn't, it's a good business decision both as a matter of corporate ethics and for providing extra utility to all users.

I believe that websites already have to ensure that websites are accessible in the UK*, so why the fuss about it in the US? More to the point, why /shouldn't/ websites have to comply to enable participation from all sections of society? This won't break the Internet.

Isn't the real issue here the ADA itself? The ADA was drafted in the mid-90's, likely before anyone fathomed its application to websites/online services. Therefore, it seems to me that the problem would be the law itself and not "results-oriented judicial activism that undermines the public's trust in the judiciary," as the author succinctly phrased it.

This is what happens when one values equality over the costs imposed by disabled people. There must be a cost/benefit analysis. But some people would rather ruin things for everyone than have there be services not available to everyone.

If this ruling is enforced, it'll be standard for web sites to be hosted outside of the US. US companies would sell their web apps to foreign shell companies, who would run the apps. It'd shut down small web companies and individuals unable to afford the legal maneuvers to manage such a scheme.

Attorneys who are in ADA litigation business are notorious for going after little guys without the resources to fight back in order to extort settlements. If this holds, all hell is going to break loose.

Isn't the real issue here the ADA itself? The ADA was drafted in the mid-90's, likely before anyone fathomed its application to websites/online services. Therefore, it seems to me that the problem would be the law itself and not "results-oriented judicial activism that undermines the public's trust in the judiciary," as the author succinctly phrased it.

The ADA is overzealous even in meatspace. It's based on the ridiculous idea of equality of outcome when clearly not all people are equal (in the mathematical sense of being identical, not of one being better than another), and places the burden of charity on business owners, who bear none of the responsibility for the disabilities, instead of the affected individuals or gov't covering the cost. It ignores a cost/benefit analysis, potentially imposing a huge burden for little gain. It's a naive attempt to legislate utopia.

Why is this a bad decision? Shouldn't people with disabilities have access to the Internet? Of course it'll be a hassle to comply with, but it's always a hassle to accommodate folks with disabilities, regardless of the context--I'm guessing it's a lot easier to add closed-captioning to videos than it is to change a physical building. But the point of the ADA is that it's a hassle worth undertaking, because all people should be able to participate in our society, even if they have disabilities.

Isn't the real issue here the ADA itself? The ADA was drafted in the mid-90's, likely before anyone fathomed its application to websites/online services. Therefore, it seems to me that the problem would be the law itself and not "results-oriented judicial activism that undermines the public's trust in the judiciary," as the author succinctly phrased it.

You're trying to rewrite history here. The web was specifically designed with things like the ADA in mind initially. The structure of the web was not intended as a deployment platform for exclusionary proprietary applications development. The web is supposed to be flexible and accommodating. If any website is following the original design goals of the web and HTML, laws like the ADA are moot.

Most content provided to Netflix ALREADY HAS THIS INFO ENCODED, whether it's from the movie studios or television stations. If "all hell breaks loose" -- a situation often invoked, but rarely seen -- let's not spare Netflix's decision to not encode their players to expose this data.

And it's not like this is a shrinking market: Baby Boomers are turning on the captions in ever-larger numbers, as their hearing fades. The deaf have nothing on the AARP when it comes to throwing their political weight around.

Why is this a bad decision? Shouldn't people with disabilities have access to the Internet? Of course it'll be a hassle to comply with, but it's always a hassle to accommodate folks with disabilities, regardless of the context--I'm guessing it's a lot easier to add closed-captioning to videos than it is to change a physical building. But the point of the ADA is that it's a hassle worth undertaking, because all people should be able to participate in our society, even if they have disabilities.

Netflix is not blocking people with disabilities from accessing it - they can access it just like anyone else. Now, deaf people can't enjoy it as much as others, but how is Netflix responsible for their deafness? Why should Netflix have to pay extra so that they can enjoy it? What if Netflix couldn't bear that burden and had to close - is society better off?

Isn't the real issue here the ADA itself? The ADA was drafted in the mid-90's, likely before anyone fathomed its application to websites/online services. Therefore, it seems to me that the problem would be the law itself and not "results-oriented judicial activism that undermines the public's trust in the judiciary," as the author succinctly phrased it.

The ADA is overzealous even in meatspace. It's based on the ridiculous idea of equality of outcome when clearly not all people are equal (in the mathematical sense of being identical, not of one being better than another), and places the burden of charity on business owners, who bear none of the responsibility for the disabilities, instead of the affected individuals or gov't covering the cost. It ignores a cost/benefit analysis, potentially imposing a huge burden for little gain. It's a naive attempt to legislate utopia.

There's a whole lot wrong with this. The ADA is about equality of access, not outcome. It's not about charity, it's about civic responsibility. And believe me, it doesn't just affect business owners; public agencies are required to comply with the ADA, too.

Look, the ADA isn't perfect, and I've spent a fair bit of time defending public agencies against ADA claims, but the idea behind it, and the implementation generally, is a noble one. As the cliche goes, a civilization is measured by how it treats its weakest members. The ADA is one of the things that separates a civilization from barbarism.

This decision appears yet another example of a Judge attempting to fit a square peg into a round hole. The willingness of the judiciary to accept the strained metaphors connect online and offline activity is startling to those of us who are avid users of the newest technological developments. The goal should be to educate both judges and elected officials about the technology. With education comes a lessened reliance on the to-be-regulated industry for the type of regulations that will be implemented.

I believe that websites already have to ensure that websites are accessible in the UK*, so why the fuss about it in the US? More to the point, why /shouldn't/ websites have to comply to enable participation from all sections of society? This won't break the Internet.

More to the point, why /shouldn't/ websites have to comply to enable participation from all sections of society?

Because businesses are just that, businesses, and not charities. Because it costs money and resources to be accessible to all sectors of the community. Because these are not essential services but entertainment which has never been a necessity of living. Because the law doesn't differentiate between big players who may be able to afford these changes, and smaller innovators who can't. And most importantly, because we're not yet living in a nanny-state.

Can't people with disabilities that hinder their consumption of online media just choose another method to consume that media? I'm pretty sure Netflix doesn't hold a monopoly on movie distribution. Hell, I was hard pressed to find many recent titles in the streaming category when I had my subscription.

Most content provided to Netflix ALREADY HAS THIS INFO ENCODED, whether it's from the movie studios or television stations. If "all hell breaks loose" -- a situation often invoked, but rarely seen -- let's not spare Netflix's decision to not encode their players to expose this data.

And it's not like this is a shrinking market: Baby Boomers are turning on the captions in ever-larger numbers, as their hearing fades. The deaf have nothing on the AARP when it comes to throwing their political weight around.

^This

The comparison to Youtube might have bearing, if ADA applied to private videos.

Isn't the real issue here the ADA itself? The ADA was drafted in the mid-90's, likely before anyone fathomed its application to websites/online services. Therefore, it seems to me that the problem would be the law itself and not "results-oriented judicial activism that undermines the public's trust in the judiciary," as the author succinctly phrased it.

This. If the law is too cumbersome, then it should be changed. But otherwise if websites fall under the criteria specified in the ADA (which I agree is open to debate) then I don't see why they should have some special exemption. After all, there are lots of other important legal doctrines that we *don't* want the web to be exempt from, like free speech, fair use, etc.

While the precedent is troubling, the ruling itself can be pretty much solved by following html standards, not using flash, and captioning videos. If you aren't worthless, you are probably doing that anyway.

The ADA had a good purpose, but it is so poorly written that it is used mostly as an extortion racket. Shaking down small businesses for (often nonexistent) accessibility issues and large ones for accommodations has been growing exponentially in this country. Heck, if you have severe dog allergies, you are still legally required to drive a pooch around in your taxi instead of asking someone to catch the next cab. The ADA needs to be repealed until a version can be written that isn't a tool for judicial overreach and abuse.

Why is this a bad decision? Shouldn't people with disabilities have access to the Internet? Of course it'll be a hassle to comply with, but it's always a hassle to accommodate folks with disabilities, regardless of the context--I'm guessing it's a lot easier to add closed-captioning to videos than it is to change a physical building. But the point of the ADA is that it's a hassle worth undertaking, because all people should be able to participate in our society, even if they have disabilities.

Netflix is not blocking people with disabilities from accessing it - they can access it just like anyone else. Now, deaf people can't enjoy it as much as others, but how is Netflix responsible for their deafness? Why should Netflix have to pay extra so that they can enjoy it? What if Netflix couldn't bear that burden and had to close - is society better off?

That's nonsense. If you can't hear what's going on and there's no captioning, you can't access Netflix in a meaningful way. And nobody's saying Netflix is responsible for anybody's deafness. But as a civilization, we're collectively responsible for enabling access to publicly-available services (you may disagree with this, but that's the intent and legal meaning of the ADA.). And if Netflix goes under, it's sure not going to be because it incurred the relatively minor cost of captioning its videos.

Here's what I don't get: why is Netflix somehow required to provide closed-captioning, but not movie theaters?

And on a vaguely related subject, we need to get some regulations going about passing closed captioning over a digital source. I'm routinely annoyed how you have to turn CC on at the box when you're using HDMI cables... My TV has CC powers that don't work without analog (because none of them do), my cable box has this annoying jumping through hoops rebooting bullshit to get them turned on/off. NO WANT.

This article actually makes me upset, because it glosses over what the ADA explicitly states. In summary, the ADA has an "undue hardship" clause. This clause basically states that a private business does not have to provide an accommodation if it would present an undue hardship for the business.

There are actually several examples that I can think of IRL, because my girlfriend uses a wheelchair. How many small businesses do you enter that do not have either (A) automatic doors or (B) a handicap door? I'd venture a guess at least few, more or less, depending on where you live. It probably seems relatively minor if you aren't using a wheelchair, but I challenge you to think of how you would get into the all the places of business you enter for a day or two and it may become easier. These small businesses, because they do not have the financial ability to make ADA compliant changes to their buildings, are exempt from compliance.

The reason this is so important is because the author has clearly skated over this rather important clause in the ADA while lambasting the result of the court's decision. Whether or not the judge was truly unbiased, the fact of the matter remains that the ruling is correct. Does anyone think even for a second that Netflix lacks the financial ability to be ADA compliant? Based on the size of their customer base, I highly doubt it.

This is actually highly relevant to the author's whole point. The author explicitly states:"If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen?"

The ADA in its existing language very clearly states that NO, **EVERY** existing website would not need to redesign their websites. As the ADA is currently written, businesses must only be ADA compliant IF AND ONLY IF it does not present an undue hardship. If it is at a later time determined that it would not present an undue hardship, to use the author's other example, YouTube may need to caption their videos as they are a larger company with greater financial resources than a small business with a website.

"I'm not creative enough to think of all the implications..."

Please read the ADA before commenting about the implications. I'm sorry if that seems rude, but this whole article seems to have a complete lack of understanding with regards to the ADA and thus seems to be creating a litany of straw men.

Great. Does this mean I am breaking the law because the video of my kid's birthday party I host on my web server does not have closed captioning? I guess I need to be an illegal immigrant to get protection from the government.

I believe that websites already have to ensure that websites are accessible in the UK*, so why the fuss about it in the US?

And would that UK requirement mean that Netflix's website would be accessible to people with disabilities, or would it also -require- Netflix to add closed-captioning to the -thousands- of movies and TV shows it streams to subscribers?

That is the issue. The court is not requiring Netflix to make their website accessible, the judge is requiring Netflix to make content that belongs to others - i.e. copyright holders - 'accessible'.

Netflix is just the middleman. They don't own the movies & TV shows. They've paid the content-owners for the rights to stream that content to Netflix's subscribers.

And, like the article infers, this will be a lawyer's license to print money in the litigation-happy USA.

I can't wait for class-action lawsuits against Apple in order to get all iTunes music videos, movies, and TV shows closed-captioned.

There's a whole lot wrong with this. The ADA is about equality of access, not outcome. It's not about charity, it's about civic responsibility. And believe me, it doesn't just affect business owners; public agencies are required to comply with the ADA, too.

Look, the ADA isn't perfect, and I've spent a fair bit of time defending public agencies against ADA claims, but the idea behind it, and the implementation generally, is a noble one. As the cliche goes, a civilization is measured by how it treats its weakest members. The ADA is one of the things that separates a civilization from barbarism.

this, a million times. If you exclude flash, silverlight, and fun plugins, the web is a surprisingly ADA complient place. Just make sure you alt your images, more or less. (ok, less. but you get the point).

dsleif wrote:

Can't people with disabilities that hinder their consumption of online media just choose another method to consume that media? I'm pretty sure Netflix doesn't hold a monopoly on movie distribution. Hell, I was hard pressed to find many recent titles in the streaming category when I had my subscription.

but what happens if Comcast, or Hulu refuses to accomidate them, too? What if everyone refuses to accomidate them? All of a sudden, if you're deaf, you can't enjoy movies. This is the sort of scenario that the ADA is trying to prevent.

There's a whole lot wrong with this. The ADA is about equality of access, not outcome. It's not about charity, it's about civic responsibility. And believe me, it doesn't just affect business owners; public agencies are required to comply with the ADA, too.

The outcome I was talking about was access. It is a charity in the sense that it provides for those in need.

Quote:

Look, the ADA isn't perfect, and I've spent a fair bit of time defending public agencies against ADA claims, but the idea behind it, and the implementation generally, is a noble one. As the cliche goes, a civilization is measured by how it treats its weakest members. The ADA is one of the things that separates a civilization from barbarism.

Perhaps it's a noble goal but it seems fundamentally flawed: it puts the burden on those not at all responsible and ignores the cost. It's like schools focusing more and more of their resources on mentally disabled students, trying to equalize them, at the cost of the others, regardless of who benefit more from the resources. If everyone is given the same resources but some make more of them than others, how is that unfair? If resources are poured into those most expensive at the cost of others, how does society benefit? (The latter question only applies when cost exceeds benefit, but as ADA doesn't discriminate in this regard, it applies.)

The ADA had a good purpose, but it is so poorly written that it is used mostly as an extortion racket. Shaking down small businesses for (often nonexistent) accessibility issues and large ones for accommodations has been growing exponentially in this country. Heck, if you have severe dog allergies, you are still legally required to drive a pooch around in your taxi instead of asking someone to catch the next cab. The ADA needs to be repealed until a version can be written that isn't a tool for judicial overreach and abuse.

I am not convinced that the ADA had a good purpose. People are not all equal, and a strong country moves ahead by helping those who have the greatest return on investment. We should not be pandering to single issue voters who wish to load our nation with extra burdens.